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26 Oct 2006 : Column 1284

Lord Soulsby of Swaffham Prior: My Lords, does the present study take into account the transfer of residues of OP compounds or their metabolites through the food chain to humans and wildlife?

Lord Rooker: My Lords, I cannot say. The study is not up and running because of the inability to get a control group. I have seen no evidence that there is any risk to the food chain. There is a lot of surveillance of our food, so it would have been picked up.

Lord Livsey of Talgarth: My Lords, I congratulate the noble Countess, Lady Mar, and my noble friend Lord Tyler on their wonderful efforts on this over a very long time. Is it not the case that the chemical companies, and perhaps Defra itself, are afraid of legal suits in relation to the poisoning that is occurring? For noble Lords who do not know, organophosphorus was used in nerve gas in the First World War. I believe that thousands of upland farmers and shepherds have been affected by depression and physical decline. Will the Minister make a commitment that the report that is commissioned will be published within a finite time so that we all know the results? What research and development have been done on alternatives to OPs and the products to which he has just referred, which seriously injure people’s health on the one hand and destroy the aquatic environment on the other?

Lord Rooker: My Lords, I said that it is alleged that OPs affect people’s health. However, their use is widespread: I understand that there has recently been concern because they are used as lubricants in the oil used in aircraft engines. There have been allegations that aircraft cabin crews have been affected. I understand that work is happening on that, but it is not part of this exercise. As to the report, the difficulty is getting the work commissioned because I do not think it will be undertaken without an adequate control group. That will be the substance, I think, of the advice given to Defra. I do not know what advice the medical and scientific panel gave.

This has to be followed through. I told my officials this morning and will tell my ministerial colleague that this issue will not go away. On the other hand, we cannot necessarily blame the manufacturers. Their product was looked at and okayed for the market. A lot of controls about who can purchase it, who can use it, how it is used and how it can safely be disposed of were put on it to keep it away from human contact. However, that does not alter the fact that there is a problem. The good thing is that since the containers were changed there has been only one report of an adverse human reaction.

The Duke of Montrose: My Lords, can I just declare my—

Lord Grocott: My Lords, I am sorry, but we are well into the twenty-fourth minute.

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G6: Ministerial Meeting

11.30 am

Lord Russell-Johnston asked Her Majesty’s Government:

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, my right honourable friend the Home Secretary is currently chairing the meeting of G6 Interior Ministers, which he opened yesterday. He plans to discuss a range of issues relating to counterterrorism, organised crime and migration. The meeting will close at lunchtime today with a press conference. The conclusions of the meeting will be published on the Home Office website and placed in the Library of the House.

Lord Russell-Johnston: My Lords, I am grateful to the Minister for that reply. She will be familiar with the document in my hand, which is described as,

It sounds like a thriller. In fact it is our European Union Committee report on the so-called G6 meeting there. First, is the Home Office fully alive to the strictures in the report about a lack of accountability and transparency? Secondly, will she say something about the linked and very sharp criticism made of the impact of G6 decisions on smaller European Union countries that is encapsulated in the phrase:

which I suppose is Franglais?

Baroness Scotland of Asthal: My Lords, first, I reassure the noble Lord that we are very alive to the strictures in the report. Secondly, there is no suggestion whatever that the G6 group is the major driver of the European movement. It is an informal group that meets to discuss matters of real interest that are openly shared with all members of the Union. The conclusions are shared also. I should make it clear that it is not a decision-making body; it is an opportunity for those six member states to discuss from time to time openly and transparently matters of mutual interest and concern.

Viscount Ullswater: My Lords, does the Minister agree that the conclusions reached at these meetings influence the work of the Commission? Is it right, therefore, that small groups should have such an influence on the whole of the EU, now of 25 members? Perhaps I should say that I sat on that committee and obviously contributed to the report.

Baroness Scotland of Asthal: My Lords, the issues that the G6 group is debating concern the whole of Europe. There is no direct correlation with the

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subjects discussed in those meetings and consequent changes made by the Commission. We genuinely think that it is an initiative that has been welcomed by all. It helps to raise issues. Those issues are taken to the whole of the Council, and all member states have an equal part in any final determination or shape that emerges from those discussions.

Lord Avebury: My Lords, I also declare an interest as a member of the committee to which the noble Viscount referred. At the meeting in Stratford, will any proposals be made on the important subjects of counterterrorism, organised crime and migration? The account in the Guardian this morning says that carousel fraud is also being discussed. Will proposals be put to the G6 meeting at Stratford that could result in decisions by European Union bodies? If so, does the noble Baroness agree that there has to be proper consultation with the other 19 states, otherwise such meetings could turn into a harmful device for the Union of Europe as a whole because the other 19 will feel excluded from that process?

Baroness Scotland of Asthal: My Lords, I need to make it absolutely clear, if I have not already done so, that the discussions do not involve formal proposals. They are a vehicle through which discussion can take place. Issues of concern for the whole of Europe may be identified. If they are, they will be brought before all member states so that they can be considered and decisions can be taken. No power is vested in this informal group meeting, so no additional importance is to be given to it over and above that given to the diverse informal meetings between different groups of member states from time to time. The noble Lord will know, as will the House, that there are several informal groupings of member states, and healthy bilateral relations continue.


11.35 am

Lord Grocott: My Lords, with the leave of the House, a Statement on a local government White Paper will be repeated later today by my noble friend Lady Andrews at a convenient time after 12.45 pm.

Legislative and Regulatory Reform Bill

11.36 am

Report received.

Clause 1 [Power to remove or reduce burdens]:

Lord Goodhart moved Amendment No. 1:

The noble Lord said: My Lords, Amendment No. 1 is grouped with Amendments Nos. 11 and 13, in my name and that of my noble friend Lord Maclennan of Rogart. Clause 1(1) provides that:

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Subsection (2) says:

The amendment would remove from Clause 1(1) the words “he considers”, so that Clause 1(1) would read:

In other words, this turns the test for the validity of the order from a subjective test to an objective one.

Under the subjective test in the Bill, the order, which is of course secondary legislation and therefore subject to review by the courts, can be quashed by a court on judicial review if, but only if, the Minister is acting irrationally, so that no reasonable Minister, who would properly consider the relevant information, could have concluded that the order would serve the purpose in subsection (2). Under an objective test, the order could be quashed if the court was satisfied that, on the balance of probabilities, the order would not serve that purpose, even though the contrary view may be arguable.

The Bill gives Ministers a wide power to legislate by order, with a restricted parliamentary process and no opportunity to amend the draft order apart from forcing the Government to withdraw a draft order and produce a revised order. The Bill, in its initial stages, was extremely controversial, and I accept that the Government have introduced new checks into the Bill to help to prevent abuses of powers. Owing, however, to the unusual nature of the powers conferred by the Bill, the further check that Amendment No. 1 would provide is needed. The test should not be whether the Minister’s view is daft, but whether, when looked at dispassionately, it is predictable that the order will more likely than not satisfy the purposes in Clause 1(2). That seems to be the proper test.

Amendment No. 11 applies the same principle to the order made under Clause 2, which is in a very similar form, and the same reasoning applies. Amendment No. 13 applies similar provisions in relation to Clause 3, which contains five provisions at present that have to be satisfied before the procedure under the Bill can be used. Those conditions are plainly essential to prevent an abuse of powers under this Bill. For that reason, I believe that having an objective test is even more important in relation to Clause 3 than it is to Clauses 1 and 2. I note that Section 3 of the Regulatory Reform Act 2001, which provides similar conditions to the conditions under Clause 3(2)(c), (d) and (e), contained a subjective test, but the powers under the 2001 Act were considerably more limited than the powers under this Bill.

Further, the Government intend to introduce Amendment No. 14, which will add a further condition that,

I will strongly support Amendment No. 14, but I believe that what is of constitutional significance is plainly a matter for the decision of judges rather than for the opinion of Ministers. It will not be an easy

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question to decide with a constitution as flexible and as uncertain as ours. Decisions on what constitutes matters of constitutional significance will need to be consistent, based on full argument by experts and with written judgments to which access can be had. It is inappropriate to leave this matter to the decisions of Ministers who may have different views. I believe that the case for all three of these amendments is strong. I beg to move.

Lord Norton of Louth: My Lords, I support the amendment. I spoke to it in Committee and there is nothing I wish to add. I look forward to the Minister developing a fuller response than he did in Committee, which was focused on the parliamentary process rather than on the points that were raised by the noble Lord, Lord Goodhart, the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Onslow. The noble Lord, Lord Goodhart, has touched on points to which I shall return in a later amendment, which I do not want to rehearse here. I endorse everything that the noble Lord, Lord Goodhart, has said and agree with the propositions that he has advanced.

Lord Kingsland: My Lords, in Hansard of Monday 3 July, I supported the amendments proposed by the noble Lord, Lord Goodhart. I do so again for the reasons set out in col. 24 of that date.

Lord Bassam of Brighton: My Lords, we return to familiar territory and a debate which the noble Lords, Lord Goodhart and Lord Norton of Louth, sponsored at an earlier stage of the Bill. Obviously, we have had time to reflect and give the matter further consideration. For an order to be laid under Clauses 1 or 2, the Minister must consider that it serves the purpose outlined in Clause 1(2) of,

or Clause 2(2) to secure that,

of better regulation. The Minister must consider that any provision under Clause 1(1) or 2(1) that does not merely restate an enactment satisfies the preconditions in Clause 3(2) whenever they are relevant.

The effect of this is not to reduce in any way the onus on the Minister to base his decisions on reasonable opinion. We contend that these tests are real ones because the Minister is under a public law duty to be reasonable when forming a view of whether or not the provisions of an order are within the terms of the order-making powers in Clauses 1 and 2 and meet the preconditions in Clause 3(2). The effect is, however, to retain what is in the Government’s view the right balance between the judgment of the Minister and Parliament, and the power of the courts. The Government are firmly of the opinion that this balance is for Parliament to decide on the basis of detailed information submitted by the Minister regarding whether any proposed order will deliver appropriate regulatory reform and meets the preconditions in Clause 3, and for the courts to step in only in the unusual instance that a Minister has breached his public law duty to be reasonable in his opinion.

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In Committee the noble Lord, Lord Goodhart, acknowledged that it is well established law that the Minister’s opinion can be quashed by the courts if it is found to be irrational, and that argument has been repeated this morning. If this amendment were to stand part of the Bill, however, the courts could override both the Minister and Parliament about whether an order is for the purposes set out in Clauses 1 or 2 and meets the preconditions in Clause 3. The noble Lord, Lord Borrie, is not with us today, but in Committee he argued that this cannot be right, and in his words would,

I put it another way: it would subcontract out constitutional matters to the courts, and I ask simply whether that is the right policy approach.

As the Delegated Powers and Regulatory Reform Committee appears to agree in its notable report on the Bill, the Government believe that the effect of the reference to ministerial opinions 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 are judgments which should be made only by a Minister, subject of course to Parliament’s agreement. They should not themselves be matters on which the court can substitute the opinion of the Minister and Parliament with its own judgment. It seems to me as a Minister that this is right. It is appropriate that relevant parliamentary committees make judgments about whether a particular order meets these tests and, as the Commons Regulatory Reform Committee puts it, about matters some of which are essentially political, while the court should be empowered to do so only on extreme—to be reasonable and fair—and very rare occasions when the Minister may have disregarded the public law duty to be reasonable in his opinion. The courts should not be able to substitute the Minister’s opinion with their own.

Noble Lords asked in Committee whether there is any reason why this subjectivity is more significant now than in the Regulatory Reform Act 2001. The Government believe that there is a reason. The Minister, exercising the power under Clause 1, must now assess financial and economic issues, along with the rebalancing of costs based on risk analysis, for example. In this Bill we are now talking about economic, financial and other practical analyses of what constitutes a burden and what is proportionate inspection and enforcement rather than legal burdens which can be more readily identified by lawyers from the face of enactments as the 2001 Act required.

It is not for lawyers or the courts to decide whether orders are intra vires. So retaining the subjective opinion is even more important to ensure that the right balance is maintained between on the one hand the judgment of the Minister and Parliament, and on the other, the power of the courts. The important preconditions in the Bill relating to necessary protections, rights and freedoms have of course been

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taken over from the 2001 Act. In each case the 2001 Act provides that an order could be made if the Minister making it is of the opinion that it did not remove necessary protections, rights or freedoms from people which they can rightly and reasonably expect to keep. The existing limitation on the order-making power in Section 3 of the 2001 Act concerning fair balance is also a matter on which the Minister is required to have the necessary opinion.

Indeed, it is right that the preconditions in Clause 3(2) follow that precedent and are subjective. Whether or not the provision made by order, taken as a whole, strikes a fair balance between the public interest and the interests of anyone adversely affected by it is essentially, we argue, a matter of judgment; it is certainly not a matter of objective fact. It may also be worth noting that the 2001 Act permits the making of such consequential or transitional provision as the Minister thinks appropriate—a subjective test rightly mirrored by the subjective tests in Clause 1(8) and (7) of the Bill.

Parliamentary committees can require an order to be subject to the super-affirmative procedure, if it is not already, and can recommend that a Minister should make specific amendments. Ultimately, if Parliament’s disagreement with the Minister’s view is insurmountable, it has a statutory right to veto an order if it does not agree with the Minister’s opinion. That is a powerful veto. The Government have also given an undertaking that they will not force through orders in the face of opposition from Parliament.

These procedural safeguards further ensure that orders will not deliver inappropriate reform. We argue that it is for Parliament to hold us to account, not the courts. We think it is right that essentially political decisions on policy matters should be located there and not within the courts—but, of course, with the public law test of reasonableness firmly in place.

For those reasons, and to protect the interests of Parliament, we argue that the noble Lord should withdraw the amendment.

Lord Goodhart: My Lords, I have always accepted that the subjective test is a real test but, equally, it is plainly not as strong a test as an objective test. The Minister has based a good deal of his argument on the proposition that the amendment would enable the courts to override a Minister and Parliament, but they can do that anyway. It has always been recognised that secondary legislation can be quashed even if it is an affirmative instrument which has received parliamentary attention. This goes way back in history because only primary legislation is exempt from review by the courts. So, therefore, whether or not these amendments are accepted, the judges will have potentially the ultimate decision.

We are concerned here with a much more limited question—that is, whether the test should be a subjective or objective one. For the reasons I gave in opening the debate on these amendments, I believe that it should be an objective test. I wish to take the opinion of the House.

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11.53 am

On Question, Whether the said amendment (No. 1) shall be agreed to?

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