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Use of the words “he considers” puts the onus on the Minister to give evidence and justify the proposal, and it is for Parliament to determine whether it agrees with that evidence. It is the same process as that used for primary legislation and, given that these powers are for changing primary legislation, that is important. It is right that judicial review is reserved for circumstances where the challenge is whether that view is reasonable. I return to the point: it is right that the court does not substitute its decision for the Minister’s. That is why the term “he considers” is very important to this legislation. It was important in 1994 and in 2001 and it is important in this Bill.

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Lord Goodhart: I should like to express my gratitude to the noble Lord, Lord Norton of Louth, for putting his name to the amendment and speaking in support of it and to all other noble Lords who spoke in support of it. Some noble Lords spoke the other way. The noble Lord, Lord Borrie, was concerned that our proposals might increase the scope for judicial review. However, I do not think that that is likely. However it is phrased, those who are upset by a decision will be strongly tempted to apply for judicial review if the case is sufficiently important. With these amendments, those who object may be more likely to be successful.

The noble Lord, Lord Stoddart of Swindon, raised a question of great importance; that is, who will take the decisions? Perhaps I may deal with that briefly. I hope very much that if the Bill goes through, Parliament or your Lordships’ House will block any attempt by Ministers to use it in circumstances where there is serious doubt about the propriety or legitimacy of doing so. However, that may not happen. It may not happen in the House of Commons because of a whipped vote which supports the order over the objections of the committee reporting on it. It may not happen in your Lordships’ House because our powers are reduced. But if Parliament is unable to put the matter straight then of course the burden falls on the courts through judicial review, and the question here is what test the court should apply. Should it be necessary for the objector to satisfy the court that the decision was not only wrong but so wrong as to be irrational, or is it sufficient to show that, looking at all the circumstances, the decision was simply wrong?

The Minister said that this means that the decision of the Minister would not be political. I do not think for a moment that that is correct. It is not the

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politicality of the decision that renders it subject to being quashed. For instance, it is quite irrelevant that the opposition party might have taken a different view had it been in power and would not have taken such a decision. The courts will not quash an order simply on the grounds that it is political, but what they could and should look at is whether in fact the order would serve the purpose under Clause 1 of,

Here I speak without looking at the question of whether that provision is going to be amended. Further, looking at Clause 4, which is the subject of Amendment No. 50, the question the court should look at is whether the policy objective intended to be secured by the provision could have been satisfactorily secured by non-legislative means; does the provision remove any necessary protections and so forth? These are not political decisions but ones on the interpretation of the Bill. Further, owing to its special nature and the extraordinary power it gives to override primary legislation by secondary legislation, in the circumstances I believe it right that the decision should be a wholly objective one and not what I have described previously as a hybrid, semi-subjective one.

Lord Williams of Elvel: The noble Lord has spelt out his case very carefully and we are grateful for that. What he is saying, in essence, is that a Bill should be amended to allow the courts, and none other than the courts, to decide whether or not an order should be approved. That is politically rather sensitive, if I may say so.

Lord Goodhart: With respect to the noble Lord, that would be the position anyway because secondary legislation is always subject to judicial review and can be quashed for being ultra vires or irrational, or for various other reasons.

Lord Borrie: The noble Lord, Lord Goodhart, has admitted that although judicial review can apply in any case, it is more likely to be successful if the words “he considers” are removed.

Lord Goodhart: Yes, indeed I do. It is obvious because it is a case where the objector does not have to go as far as showing irrationality in the decision. It only has to go as far as showing that the decision reflects the judge’s view that the condition does not satisfy the wording of the Act. It is basically a question of who interprets the legislation. In a case of that kind, given the very considerable powers conferred on Ministers by this Bill, they should be counteracted by strengthening the powers of judicial review over those decisions.

In those circumstances, I will ask the leave of the Committee to withdraw the amendment.

The Earl of Onslow: Before the noble Lord withdraws the amendment, perhaps I may point out to him that it sits on just one word. I believe it is customary that if we introduce a further amendment on Report, we will have to alter the wording somewhat. How can this amendment be altered? It is a terribly simple point. I

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come back to what the noble and learned Lord, Lord Lloyd of Berwick, said—and he ought to know, he is a Law Lord. How can an amendment of one word, having been withdrawn, be altered at Report stage?

Lord Goodhart: I am unaware of any such rule as the noble Earl, Lord Onslow, suggests. I have, over and over again, withdrawn amendments and brought them back at later stages. I think that that applies to this Bill as much as to any. In the expectation that the amendment will be resurrected in the same form at Report stage, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Baroness Wilcox moved Amendment No. 2:

The noble Baroness said: I hope that this will refresh the Minister, and perhaps I can get my own way on the Bill.

In moving Amendment No. 2, I shall speak also to Amendments Nos. 3 and 4. This group of amendments seeks to test the process of consultation that is in place to deal with representations from business and organisations about the regulations to which they are subject. The process of initiating an order under Clause 1 begins with the Minister considering whether any order would serve the purpose of removing or reducing any burden, but there is no duty on the Minister to initiate such a process. We have tabled amendments, which will be debated later today, that impose a duty on Ministers to deregulate, but the purpose of this amendment is to make the consultation process on regulation more transparent.

If a Minister does not think that a representation has merit or that the burden is not disproportionate, then this amendment would require the Minister to let Parliament know formally. This, we hope, would focus the minds of Ministers and their officials to justify why regulations that seem to be placing a disproportionate burden on business and individuals are remaining in force. More importantly, Parliament could see what regulations seem to be attracting the most amount of criticism. In addition, this would be a guaranteed way of ensuring that Parliament would see why the Minister has decided that the burdens complained of are proportionate.

I draw support for this idea from the Better Regulation Task Force report to the Prime Minister entitled Less is More, which was published in March 2005. Recommendation 2 of that report states:

Our amendment seeks to get the ideas in this recommendation into statute. I understand that Clause 14 deals with the consultation process after the Minister has proposed to go ahead with an order, but could the

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Minister shed some light on the consultation process on existing regulations? In particular, I would welcome an update on the implementation of recommendation 2 of the report. What formal mechanisms are now up and running to vet individual representations about regulations? The Government’s response to the report states that the full process for dealing with simplification proposals will be launched by December 2005. I ask the Minister: is this on course?

I also understand that the Government were to submit to the Better Regulation Commission a six-monthly update on progress with the implementation of the recommendations. Can the Minister explain when that report, which is now due, will be available, and whether it will be made public? I beg to move.

Lord Bassam of Brighton: I welcome the noble Baroness’s positive approach to the Bill, which is in sharp contrast to some other contributions that have been made this afternoon. I welcome the fact that the amendment focuses on those who consider that they are suffering from disproportionate burdens and the way in which it questions the Government’s management of representations from those who believe that to be the case. The intention behind the amendment is entirely laudable and praiseworthy, but perhaps a fraction misdirected. I shall explain why we think it is unnecessary.

The noble Baroness drew attention to the Better Regulation Task Force report, brilliantly entitled Regulation—Less is More, published in March of last year. She quoted the chunk of the report which I, too, was going to quote in advancing the Government’s case, so we will not bother with that. But suffice it to say, there is clearly agreement across the Chamber on these issues.

In September last year, the Government put in place the better regulation portal. As I have described to the noble Baroness and others outside the Chamber, it is an online mechanism for those regulated to submit simplification proposals. The better regulation portal is but one method that can be used by stakeholders for the submission of simplification proposals. Stakeholders can simply submit proposals in a number of other ways—by letter, e-mail, through existing contact with departments and through the industry-wide and government fora that exist. All departments are committed to responding to these simplification proposals within 90 working days, setting out and justifying the course of action they propose and, if possible, a time limit for delivery.

The scope of the initiative includes all existing regulations which affect the private, public and voluntary sectors across domestic and European issues. So far we have received 330 proposals—121 through the portal, 38 by e-mail and 171 by correspondence. Of these proposals, 28 reforms are being taken forward by the respective departments responsible for the policy and 50 have been declined. The remaining 252 proposals are still under active consideration by departments and are in the process of being responded to.

One example of a measure received through the portal process and acted on by a department relates to

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form 42, a report on employment-related securities—any transfer or issue of shares—required by Her Majesty’s Revenue and Customs. That form was causing annoyance to small and medium-sized enterprises; the cost to businesses has been estimated at £200 per form. Acting on this suggestion, the Chancellor announced in the 2005 Pre-Budget Report the removal of the requirement for over 90 per cent of UK companies to fill in form 42. I understand that this burden has been removed from more than 300,000 companies, saving them £200 per form—an estimated saving to the UK economy of £60 million.

I accept that this is one example of the successful approach of using the portal, and I am sure that there will be occasions on which proposals are not taken forward. That might be for a number of reasons. In some cases, proposals are based on a misunderstanding of the regulation, and responses clarify the fact that there is no legal requirement to undertake a specific training course on portable appliance testing, for example. In others, it is hard to see the benefit of changing legislation to, for example, make tax discs square rather than round. Departments will also need to consider proposals in context and may need to weigh up a number of factors before deciding whether to go ahead with a particular reform.

Given the volume of proposals received it would be impractical to lay a report before Parliament setting out the reasons why a proposal to make an order was declined, which is at the core of the amendment. Civil servants should use their finite resources to root out unnecessary bureaucracy rather than invest more of their time in producing lists and writing more reports for Parliament. Of course, we need to identify those who suffer a disproportionate burden from legislation. We are the first Government in the UK to face up to the challenge of identifying and measuring the total administrative costs placed on business, charities and voluntary organisations by government regulation so that we can take action to reduce them.

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The noble Baroness asked about the requirement placed on departments to publish detailed information on both the administrative costs of complying with government regulations and plans for reducing these costs and other regulatory burdens. I cannot give a definite time for the publication of that information, but it will be later this year. Departments are also obliged to report on their better regulation work as part of their annual reports, as they have done for the past two years. Reporting requirements, therefore, are already in place.

The Better Regulation Executive is developing proposals to improve the effectiveness of regulatory impact assessments. The aim is to improve the clarity with which costs and benefits are presented and to streamline the RIA requirements to make them easier to use throughout the policy development and implementation cycle. The Better Regulation Executive intends to consult on its proposals shortly.

We must not lose sight of the fact that there are sometimes valid reasons why some activities receive a disproportionate burden from legislation. An example

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would be the introduction of more targeted, or proportionate, risk-based burdens, such as a more efficient, risk-based inspection regime, where the burden of inspection on those judged to be low risk is reduced at the expense of more onerous inspections for those judged to be high risk.

The Government make no apologies for targeted regulation that improves standards in public services, promotes competition, ensures fairness at work, helps industry, provides protection for consumers and the environment, and strips away unnecessary or outdated regulations, both here and in Europe. These amendments are unnecessary for the reasons that I have just set out. I therefore suggest that the noble Baroness, having heard about the work that is going on, the timetables for reporting and our commitment to continue consultation with those parts of industry to which a regulation is relevant, withdraws her amendment.

Baroness Wilcox: I listened carefully to the Minister and will read what he said when it appears in Hansard. I am sorry that the Government believe that providing Parliament with a list of reasons why requests have been rejected would be too much of a burden and take too much time. The reason why we are having yet another crack at lifting or easing the regulatory burden on businesses is that nothing moves quickly enough and nothing is done fast enough. That is to a large extent because nothing is transparent. Our intention is to focus the minds of Ministers and their officials on justifying why the regulations that seem to place a disproportionate burden on business and individuals remain in force. If we are unable to see why a request is rejected, how can we pull Ministers and their officials down to a point where they will get on with this job? Given the amount of money that we spend on making lists of this, that and everything else, spending a little bit more on reporting to Parliament is not asking for much. I shall of course ask leave of the Committee to withdraw the amendment, but I am disappointed by the Minister’s response and will return to the matter at a later date. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 3 and 4 not moved.]

Baroness Wilcox moved Amendment No. 5:

The noble Baroness said: The purpose of the amendment is to ensure that the net effect of any order made under this clause would be to reduce the overall burden of any piece of legislation. At present, a Minister could introduce a measure to reduce the burden on one person but in theory in doing so could raise the overall burden on several others. The Minister in another place indicated that the,

But he did not give a cast-iron guarantee that Clause 1 could not be used to increase the overall burden. Emphasis is one thing, but we need a guarantee. As the Bill stands, the Minister can say that he wants to remove a burden even if there is an increase in overall burdens—and that cannot be right. That situation may well be unlikely, but the potential is there.

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I am sure that the Government would like to see the overall effect of any order under this clause being deregulatory and I had hoped that the difference between us on this point was essentially a matter of the drafting of subsection (2). But I fear that the letter that I received from the Minister last week indicates that the contrary is the case. We accept that in introducing an order some burdens might need to be shifted on to others; indeed, that is what the Minister accepted in another place when he said that,

In the letter that the Minister in this place has sent me, for which I am extremely grateful, he confirmed that flexibility, explaining that,

But that should not preclude a guarantee written into the Bill that the net overall effect of any deregulatory order is to reduce the overall burden. The clear exposition of this contained in the letter that I received means that the Bill is not necessarily deregulatory at all. In fact, it could be quite the opposite. I beg to move.

Lord Maclennan of Rogart: Amendment No. 53, standing in my name and that of my noble friend Lord Goodhart, would also address the point raised by the noble Baroness about the possibility of new burdens being created by an ostensibly deregulatory lifting of burdens. The point advanced in our amendment is perhaps narrow, particularly in the light of Clause 4(2)(c), but none the less it is important. Clause 4(2)(c), which establishes a precondition, making it not permissible to utilise the powers of the Bill unless it,

seems rather widely drawn, since the phrase “public interest” is an omnibus phrase and does not make it clear that it may necessarily involve the specific interests of other individual people who are or may be affected by the proposed change in the law.

The drafting of our amendment is designed to make it quite clear that the specific interests of different groups of individuals must be weighed against each other and that any measure designed to lift the regulatory burden from one group must be seen to be proportionate in its impact on that other group. I commend our amendment to the Committee.

Lord Bassam of Brighton: Amendments Nos. 5 and 53, as the noble Lord, Lord Maclennan of Rogart, explained, go in the same direction. The power to remove all the burdens resulting from legislation is, as noble Lords will understand, provided in Clause 1. As well as removing or reducing burdens, it could also introduce new burdens, so it may be helpful to explain

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some of the thinking behind Clause 1(2). As the noble Baroness said, I set some of that out in correspondence.

First, Clause 1 permits the removal or reduction of any burden that results for any person from legislation. Removing or reducing a burden from one person may, however, as I think is now understood, increase burdens upon others. This reflects the situation under the 2001 Act and could allow, for example, a reduction of burdens on the regulated at the expense of an increase in burdens for regulators. Another example would be the introduction of more targeted, or proportionate, risk-based burdens; for example, a more efficient, risk-based inspection regime, where the burden of inspection is reduced on those judged to be low risk at the expense of more onerous inspections for those judged to be high risk.

Secondly, Clause 1 also permits the removal or reduction of the overall burdens resulting for any person from legislation. This would permit an order to replace a scheme that imposes burdens on a person with another scheme that is less burdensome overall for that individual. New burdens could be imposed on a person if that was done in the context of reducing the overall burdens that result from legislation for that individual.

As I said, that was possible under the 2001 Act. For example, the Regulatory Reform (Fire Safety) Order created one simple, risk-based fire safety regime applying to all buildings that the public might use. That reduced burdens on a large number of businesses, but the rationalisation also imposed new, proportionate burdens on some other businesses.

Amendments Nos. 5 and 53 address the issue of whether orders should have to effect a net reduction in the level of burdens to which a person is subject. In calculating the net level of burdens, it is important to remember that the measurement of burdens is not an exact science. It is difficult to compare the relative impacts of burdens, given the definition of “burden” in Clause 1. These are issues of judgment based on evidence—evidence that, as we discussed, the Minister will weigh and which the parliamentary committees will rightly challenge and confirm where appropriate. For example, Amendment No. 53 seeks to impose an additional precondition stating that any new or increased burdens can be imposed on one person only to the extent necessary for the removal or reduction of burdens on others, and the new or increased burdens must be proportionate to that purpose.

In any case, the precondition in Clause 4(2)(c) requires that the provisions of an order, taken as a whole, must strike,

This would ensure that any new burdens imposed by an order were considered in terms of the wider public interest.

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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administrative inconvenience may not impose a financial cost. In these cases, the different types of burdens being added and removed could be incommensurable, and it would therefore be impossible to compare the burdens imposed on one person with the burdens removed from another.

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 in order 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

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and others are still waiting for what we think and they think is an effective vehicle to deliver sensible cuts in red tape.

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.

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